Kitchen v. Lucasville Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

MICHAEL A. KITCHEN, : Case No. 1:22-cv-500

:

Plaintiff, :

:

Judge Matthew W. McFarland

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

LUCASVILLE CORRECTIONAL :

INSTITUTION, et al., :

:

Defendants. :

ORDER and

REPORT AND RECOMMENDATION

Michael A. Kitchen, an Ohio prisoner proceeding in forma pauperis and without the

assistance of counsel, has filed civil rights complaint with this Court. (Doc. 1, 3). He alleges that

two officers at the Lucasville Correctional Institution brutally assaulted him for no reason,

resulting in serious injuries. (Doc. 1, PageID 5).

The matter is currently before the Court to conduct the initial screen of the Complaint as

required by law. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). For the reasons that follow, the

Undersigned RECOMMENDS that the Court permit Kitchen to PROCEED at this time on his

Eighth Amendment excessive force claim against Defendants Corns and Romine, in their

individual capacities. The Undersigned RECOMMENDS that the Court DISMISS the remaining

claims, including any claims against Corns and Romine in their official capacities, and all claims

against the Lucasville Correction Institution and the Ohio Department of Corrections.

I. Initial Screening Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or

employee of a governmental entity,” and is proceeding in forma pauperis, the Court is required to

conduct an initial screen of his Complaint. 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2). The

Court must dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

A complaint is frivolous when plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall,

898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is

immune from suit or when plaintiff claims a violation of a legal interest which clearly does not

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are

delusional or rise to the level of the irrational or “wholly incredible.” Denton v. Hernandez, 504

U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations

that are “fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630

F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).

A complaint must be dismissed where it fails to state a claim upon which relief may be

granted. To state a claim for relief, a complaint must set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must

construe the complaint in plaintiff’s favor, accept all well-pleaded factual allegations as true, and

evaluate whether the complaint contains “enough facts to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, a

complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a

cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).

In the interest of justice, this Court is also required to construe a pro se complaint liberally

and to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing

Fed. R. Civ. P. 8(f) [now (e)]). Even with such a liberal construction, a pro se complaint must still

adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting

all the material elements’ to recover under some viable legal theory.” Barhite v. Caruso, 377 F.

App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

II. Parties and Claims

Plaintiff Michael A. Kitchen was an inmate at the Lucasville Correctional Institutional

when the events described in the Complaint allegedly occurred. (Doc. 1, PageID 3, 5). He has

since been transferred to the Toledo Correctional Institution. (Doc. 1, PageID 1, 3).

Kitchen sues four defendants: Correctional Officer A. Corns, Correctional Officer J.

Romine, the Lucasville Correctional Institution itself, and the Ohio Department of Corrections

[properly known as the Ohio Department of Rehabilitation and Correction, or ODRC]. (Doc. 1,

PageID 1, 4). As noted above, Kitchen alleges that Officer Corns and Officer Romine brutally

assaulted him “for no reason what’s so ever.” (Doc. 1, PageID 5). He explains that Officer Corns

asked him to go into the equipment room during recreation time. (Id.). Kitchen did so and was in

the process of retrieving jump ropes for the other inmates. (Id.). When he turned around to bring

the jump ropes out, Officer Corns and Office Romine physically attacked him. (Id.). Kitchen

suffered injuries in the attack: “I Received a fractured face Stitches in Both my Eyes, Both my

Earlobes and 10 Staples in my Head from a death Blow which is [illegal].” (Id.).

The Complaint does not indicate whether Kitchen sues Defendants in their official

capacities or in their individual capacities. He seeks monetary damages for his injuries, including

punitive damages. (Doc. 1, PageID 6).

Although the Complaint does not say, the Undersigned construes it as raising and Eighth

Amendment excessive force claim under 42 U.S.C. § 1983.1 This statute allows a plaintiff to seek

redress from state actors for “the deprivation of any rights, privileges, or immunities secured by

the Constitution.” Nelson v. Campbell, 541 U.S. 637, 643 (2004).

III. Discussion

At this point in the case, without the benefit of an answer or other briefing, it appears that

Kitchen’s Eighth Amendment excessive force claim against Officer Corns and Officer Romine (in

their individual capacities) should proceed to further development. See Farmer v. Brennan, 511

U.S. 825, 832 (1994) (“In its prohibition of ‘cruel and unusual punishments,’ the Eighth

Amendment places restraints on prison officials, who may not, for example, use excessive physical

force against prisoners.”). The Undersigned expresses no opinion on the merits of this claim at

this time.

1 Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress, except that in any action brought against

a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983.

The remainder of Kitchen’s claims, for the reasons discussed below, should be dismissed.

A. The Eleventh Amendment bars monetary damage claims against Corns and

Romine in their official capacities.

As noted above, Kitchen seeks relief in the form of monetary damages. (Doc. 1, PageID

6). Claims for monetary damages against state employees in their official capacities are barred by

the Eleventh Amendment to the United States Constitution. Maben v. Thelen, 887 F.3d 252, 270

(6th Cir. 2018).

“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,’ individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)

(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Thus, “[a] suit against an individual in

his official capacity is the equivalent of a suit against the governmental entity.” Matthews v. Jones,

35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68

(1989)). Here, the Complaint suggests that Correctional Officers Corns and Romine were working

for the Ohio Department of Rehabilitation and Correction (ODRC), which is an agency of the State

of Ohio. (Doc. 1, PageID 4). See Fields v. Ohio Dep’t of Rehab. & Corr., No. 2:15-cv-1271, 2015

WL 6755310, at *3 (S.D. Ohio Nov. 4, 2015.) Claims against Corns and Romine in their official

capacities are thus the same as claims against the State of Ohio.

Claims for damages against the State of Ohio are barred by the Eleventh Amendment to

the United States Constitution, which “‘denies to the federal courts authority to entertain a suit

brought by private parties against a state without its consent.’” Maben, 887 F.3d at 270 (quoting

Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 464 (1945)). “The [United States

Supreme] Court has held that, absent waiver by the State or valid congressional override, the

Eleventh Amendment bars a damages action against a State in federal court.” Maben, 887 F.3d.

at 270, (quoting Kentucky v. Graham, 473 U.S. 159, 169 (1985)). Here, “because Ohio has not

consented to suits in federal court nor has Congress abrogated Ohio’s immunity under § 1983,”

the State of Ohio has immunity for claims against it. Smith v. DeWine, 476 F. Supp. 3d 635, 652

(S.D. Ohio 2020) (citing Ohio v. Madeline Marie Nursing Homes # 1 & # 2, 694 F.2d 449, 460

(6th Cir. 1984) and Giles v. Univ. of Toledo, 478 F. Supp. 2d 924, 960-61 (N.D. Ohio 2007)).

This immunity “extends to state officials sued in their official capacity” for monetary

damages, such as is pursued here. Smith v. DeWine, 476 F. Supp. 3d at 650-51. (Doc. 1, PageID

6). Again, this is because “‘a suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office,’ which is ‘no different from a

suit against the State.’” McCoy v. Michigan, 369 Fed. App’x. 646, 654 (6th Cir. 2010) (quoting

Will, 491 U.S. at 71).

Accordingly, the claims for monetary damages against Corns and Romine in their official

capacities are barred by the Eleventh Amendment and should be dismissed.

B. The Lucasville Correctional Institution and the Ohio Department of Corrections

are not “Persons” that can be sued under § 1983.

The two other defendants named in this lawsuit are the Lucasville Correctional Institution,

and the Ohio Department of Corrections [properly known as the Ohio Department of

Rehabilitation and Correction, or ODRC]. (Doc. 1, PageID 1, 3). Neither entity is a “person” who

can be sued under 42 U.S.C. § 1983.

To state a cause of action under § 1983, a plaintiff must allege: “(1) a deprivation of a right

secured by the Constitution or laws of the United States (2) caused by a person acting under color

of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008)

(emphasis added). A prison is not a “person” under this statute. See Williams v. Ohio Dep’t of

Rehab. & Corr., No. 1:20-cv-205, 2020 WL 2225884, at *2 (S.D. Ohio Mar. 16, 2020), report and

recommendation adopted, 2020 WL 2216859 (S.D. Ohio May 7, 2020) (citing Parker v. Michigan

Dept. of Corrections, 65 F. App’x. 922, 923 (6th Cir. 2003)) (“A correctional facility is not a

‘person’ subject to suit under 42 U.S.C. § 1983.”).

Neither is the ODRC. See Vizcarrondo v. Ohio Dep’t of Rehab. & Corr., No. 1:18-cv-

1255, 2019 WL 6251775, at *5 (N.D. Ohio Nov. 22, 2019) (“multiple courts have found that

ODRC is not a ‘person’ subject to suit under 42 U.S.C. § 1983.”); Peeples v. Ohio Dep’t of Rehab.

& Corr., 64 F.3d 663 (6th Cir. 1995) (affirming the district court’s dismissal of suit against the

ODRC which said that “the ODRC is not a ‘person’”) (unreported table case).

Because the Lucasville Correctional Institution and the ODRC are not “persons” that can

be sued under § 1983, Kitchen cannot state a § 1983 claim against them. All attempted claims

against them should be dismissed.

IV. Conclusion

The undersigned Magistrate Judge, having conducted the initial screening of Kitchen’s

Complaint, RECOMMENDS that:

1. The Court permit Plaintiff Kitchen to PROCEED at this time on his Eighth

Amendment excessive force claim against Defendants Corns and Romine, in their

individual capacities.

2. The Court DISMISS the remaining claims, including the claims for damages

against Corns and Romine in their official capacities, and all claims against the

Lucasville Correction Institution and the Ohio Department of Corrections/ODRC,

pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B).

3. The Court CERTIFY pursuant to 28 U.S.C. § 1915(a)(3) that, for the reasons

discussed above, an appeal of any Order adopting this Report and Recommendation

would not be taken in good faith, and therefore, deny Plaintiff leave to appeal in

forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

The Undersigned also ORDERS that:

A. Plaintiff Kitchen shall submit to the Court completed Summons Forms and U.S.

Marshal Forms for Defendants Corns and Romine. He shall do so WITHIN

THIRTY DAYS. For his convenience, the Clerk of Court is DIRECTED to send

Plaintiff two copies the blank Summons Form and U.S. Marshal Form along with

this Report and Recommendation. Service will be ordered, if appropriate, after the

Court considers this Report and Recommendation and any objections to it that are

filed as discussed below.

B. Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel,

upon Defendants’ attorney, a copy of every further pleading or other document

submitted for consideration by the Court. Plaintiff shall include with the original

paper to be filed with the Clerk of Court a certificate stating the date a true and

correct copy of any document was mailed to Defendants or Defendants’ counsel.

Any paper received by a District Judge or Magistrate Judge that has not been filed

with the Clerk or that fails to include a certificate of service will be disregarded by

the Court.

C. Plaintiff shall promptly inform the Court of any changes in his address which may

occur during the pendency of this lawsuit.

V. Notice Regarding Objections to this Report and Recommendation

If any party objects to this Report and Recommendation (“R&R”), the party may serve and

file specific, written objections to it within FOURTEEN DAYS after being served with a copy

thereof. Fed. R. Civ. P. 72(b). All objections shall specify the portion(s) of the R&R objected to

and shall be accompanied by a memorandum of law in support of the objections. The Court may

extend the 14-day objections period if a timely motion for an extension of time is filed.

A Judge of this Court will make a de novo determination of those portions of the R&R to

which objection is made. Upon proper objection, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §

636(b)(1).

The parties are specifically advised that failure to object to the R&R will result in a waiver

of the right to have the District Judge review the R&R de novo, and will also operate as a waiver

of the right to appeal the decision of the District Court adopting the R&R. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

October 7, 2022 s/Peter B. Silvain, Jr.

PETER B. SILVAIN, JR.

UNITED STATES MAGISTRATE JUDGE